the bishop admits the clerk of the one, he puts the other out of possession, and consequently to his action; and the bishop becomes a disturber, if he who is put out of possession proves to have a better title. (')

It has been already stated, that on the vacancy of a living, the patron is bound to present within six calendar months, or the benefice will lapse to the bishop. But if the presentation is made within that time, the bishop is bound to admit and institute the clerk, if found sufficient, unless the church is full, or there be notice of any litigation.

If opposition is intended, it is usual for each party to enter a caveat with the bishop, to prevent the institution of the other's clerk; but to this caveat the temporal courts pay no regard, viewing a caveat as a mere nullity. (2)

Hence on the delay or refusal of the bishop to admit his clerk, the patron brings his writ in the témporal courts, called quare impedit, against the bishop for the temporal injury done to his property, in disturbing him in his presentation; for the right of presentment is a temporal right and a temporal inheritance, and hence the right

(1) Degges, P. C. ch. 3. 11.

(*) 1 Rol. Rep. 191.3 Black. Com. 246.

of presentments, and to determine who ought to present and who not, and at what time belong to the king and his temporal courts. (1)

Westm.

13 Ed. I. c. 5.

In order to redress usurpation of advowsons of Statute churches, it was enacted by the statute of Westminster, 13 Edw. I. c. 5. that "Whereas of advowsons of churches there be but three original writs, that is to say, one writ of right, and two of possession, which be darrein presentment, and quare impedit: and hitherto it hath been used in the realm, that when any having no right to present had presented to any church whose clerk was admitted, he that was the patron could not recover his advowson but only by a writ of right, which should be tried by battle or by great assize, whereby heirs within age by fraud or else by negligence of their wards, and heirs both of great and mean estate, by negligence or fraud of tenants by the courtesie, women tenants in dower, or otherwise, for term of life or for years, or in fee-tail, were many times disherited of their advowsons, or at least (which was the better for them) were driven to their writ of right, in which case hitherto they were utterly disinherited: It is provided, that such presentments shall not be so prejudicial to the right heirs, or to them unto whom such advowsons ought to revert after the death of any persons: for as

(1) Doctor and Student, ch. 36. 218.

often as any, having no right, doth present, during the time that such heirs are in ward, or during the estates of tenants in dower, by the courtesie, or otherwise, for term of life or of years, or in tail, at the next avoidance, when the heir is come to full age, or when after the death of the tenants before named, the advowson shall revert unto the heir, being of full age, he shall have such action by writ of advowson possessory, as the last ancestor of such an heir should have had at the last avoidance happening in his time, being of full age before his death, or before the demise was made for term of life, or in fee-tail, as before is said. The same shall be observed in presentments made unto churches, being of the inheritance of wives, what time they shall be under the power of their husbands, which must be aided by this statute by the remedy aforesaid. Also religious men, as bishops, archdeacons, parsons of churches, and other spiritual men, shall be aided by this statute in case any, having no right to present, do present unto churches belonging to prelacies, spiritual dignities, parsonages, or to houses of religion, what time such houses, prelacies, spiritual dignities, or parsonages be vacant.

"Neither shall this act be so largely understood that such persons for whose remedy this statute was ordained, shall have the recovery aforesaid, surmising that guardians of heirs, tenants in tail,

by the courtesie, tenants in dower, for term of life, or for years, or husbands which faintly have defended pleas moved by them or against them : because the judgments given in the king's courts shall not be annulled by this statute, the judgment shall stand in his force until it be reversed in the court of the king as erroneous, if error be found; or by assize of darrein presentment, or by enquest, by a writ of quare impedit, if it be passed, or be annulled by attaint or certification, which shall be freely granted. And from henceforth one form of pleading shall be observed among justices in writs of darrein presentment and quare impedit; in this respect, if the defendant allegeth plenarty of the church of his own presentation, the plea shall not fail by reason of the plenarty; so that the writ be purchased within six months, though he cannot recover his presentation within the six months. And sometimes when an agreement is made between many claiming one advowson, and enrolled before the justices in the roll or by fine in this form,—that one shall present the first time, and at the next avoidance another, and the third time another; and so of many in case there be many. And when one hath presented and had his presentation, which he ought to have according to the form of their agreement and fine, and at the next avoidance he to whom the second presentation belongeth is disturbed by any that was party to the said fine, or by some other in his stead:

It is provided, that from thenceforth they that be so disturbed shall have no need to sue a quare impedit, but shall resort to the roll or fine. And if the said concord or agreement be found in the roll or fine, then the sheriff shall be commanded that he give knowledge unto the disturber, that he be ready at some short day, containing the space of fifteen days or three weeks, (as the place happeneth to be near or far), for to show if he can allege any thing wherefore the party that is disturbed ought not to present. And if he come not, or peradventure doth come, and can allege nothing to bar the party of his presentation, by reason of any deed made, written since the fine was made or enrolled, he shall recover his presentation with his damages. And where it chanceth that after the death of the ancestor of him that presented his clerk unto a church, the same advowson is assigned in dower to any woman, or to tenant by the courtesie, which do present; and after the death of such tenants, the very heir is disturbed to present when the church is void: It is provided, that from thenceforth it shall be in the election of the party disturbed whether he will sue a writ of quare impedit or of darrein presentment; the same shall be observed in advowsons demised for term of life or years, or in fee-tail.

And from henceforth in writs of quare impedit and darrein presentment damages shall be